REVISED UNIFORM PRINCIPAL AND INCOME ACT (1997) SEVENTH DRAFT. (For the 11/15/96 Drafting Committee Meeting) [Article] 1

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1 REVISED UNIFORM PRINCIPAL AND INCOME ACT (1997) SEVENTH DRAFT (For the 11/15/96 Drafting Committee Meeting) Section [Article] 1 DEFINITIONS AND GENERAL PRINCIPLES 101 Definitions 102 Fiduciary Duties; General Principles 103 Trustee s Power to Adjust When the Trust Instrument is Silent [Article] 2 DECEDENTS' ESTATES AND TERMINATING INCOME INTERESTS 201 Determination and Distribution of Net Income 202 Distributions to Residuary and Remainder Beneficiaries [Article] 3 APPORTIONMENT AT THE BEGINNING AND END OF AN INCOME INTEREST 301 When Right to Income Begins 302 Apportionment of Receipts and Disbursements When Decedent Dies or Income Interest Begins 303 Apportionment of Receipts and Disbursements When Income Interest Ends 304 When Income or Obligations Are Due - 1 -

2 [Article] 4 ALLOCATION OF RECEIPTS DURING ADMINISTRATION OF TRUST Part 1 Distributions From Entities 401 Character of Distributions 402 Distributions From Trusts and Estates 403 Business and Other Activities Conducted by Trustee Part 2 Receipts Not Normally Apportioned 410 Principal Receipts 411 Rental Property 412 Obligations to Pay Money 413 Insurance Policies and Other Contracts Part 3 Receipts Normally Apportioned 420 Insubstantial Allocations Not Required 421 Deferred Compensation, Annuities, and Similar Payments 422 Liquidating Assets 423 Minerals, Water, and Other Natural Resources 424 Timber 425 Unproductive Property 426 Derivative Financial Instruments and Options 427 Hybrid Assets [Article] 5 ALLOCATION OF DISBURSEMENTS DURING ADMINISTRATION OF A TRUST - 2 -

3 501 Disbursements From Income 502 Disbursements From Principal 503 Transfer From Income to Principal for Depreciation 504 Transfers From Income to Reimburse Principal 505 Income Taxes 506 Equitable Adjustments Between Principal and Income Because of Taxes [Article] 6 MISCELLANEOUS PROVISIONS 601 Uniformity of Interpretation 602 Short Title 603 Severability 604 Repeal 605 Effective Date 606 Application of [Act] to Existing Trusts and Estates - 3 -

4 Prefatory Comments Scope. The prior Uniform Acts, and this Act, contain rules that deal with four areas of trust administration: - How is income earned during the probate of an estate to be distributed to trusts and to persons who receive outright bequests of specific property, pecuniary gifts or part of the residue? the is - When a trust begins (i.e., when a person who creates trust dies or when he transfers property to a trust during life), what property is principal that will eventually go to the remainder beneficiaries and what income? - When an income interest ends, who gets the income that has been received but not distributed, or that is due but not yet collected, or that has accrued but is not yet due? or - After an income interest begins and before it ends, how should its receipts and disbursements be allocated to between principal and income? The purpose of the Act is to set forth rules that apply to the interests of successive income and remainder beneficiaries. It is not intended to apply to trusts that do not have successive income and remainder beneficiaries, although the Act does not expressly say so. Thus, it is not intended to apply to a trust created to fund a qualified retirement plan, although it has been suggested that there are successive beneficiaries of a trust that funds a retirement plan because the retirees who are presently receiving payments from the trust should be regarded as the income beneficiaries and those who will retire in the future should be regarded as the remainder beneficiaries. And it is an open question whether it does or should apply to an individual retirement account (IRA), which may be formed as either a trust or a custodial (agency) arrangement. Although the vast majority of IRAs (more than 90% of them, I have been told) are formed as custodial arrangements, some lawyers argue that Internal Revenue Code section 408(h), which provides that "For purposes of this section, a custodial account shall be treated as a trust...," means that they are trusts for local law purposes. This clearly seems incorrect, but it leaves us with the anomalous situation of having two kinds of IRAs, one of which is a trust for local law purposes that is arguably subject to this Act, and one of which is not a trust. Neither is it intended to apply to a trust or corporation created exclusively for charitable purposes, including one that is established by a private donor as an endowment fund for one or more specific charities. But it has been suggested that Section - 4 -

5 103 of this Act might apply to a private endowment, which apparently may be beneficial in some cases because the Uniform Management of Institutional Funds Act does not apply to a fund held for an institution by a trustee that is not an institution (section 1(2) of UMIFA). How does the Drafting Committee feel about whether this Act should specifically provide that it does or does not apply in some or all of these situations? If there is a provision in this Act that is useful in the administration of a private endowment trust, should those persons who believe that this Act may apply to their situation be able to pursue their theories even though this Act has not been drafted with those trusts in mind? Is the UMIFA problem better solved by an amendment to that Act? And what should we do with IRAs? The individuals who open these accounts are totally unaware of the technical legal relationship that is being created; and the sponsors' computer programs are not designed to track the rules found in a principal and income act. Should we make a point of saying that this Act doesn't apply to IRAs formed as a trust, or should we just leave the sleeping dog where it lies? - 5 -

6 REVISED UNIFORM PRINCIPAL AND INCOME ACT (199_) SECTION 101. DEFINITIONS. (a) In this [Act]: [Article] 1 DEFINITIONS AND FIDUCIARY DUTIES (1) "Accounting period" means a calendar year[. or other 12-month period selected by the fiduciary.] The term includes a shorter portion of the accounting period that begins when an income interest begins or ends when an income interest ends. Note to Drafting Committee - The bracketed material permits a fiduciary to select a 12-month period other than the calendar year as the accounting period while preserving the calendar year as the default in case the fiduciary fails for some reason to select an accounting period. I think there should be a default year, and I think there should be an option to have another year; but I hope we can accomplish that in this definition without having to provide elsewhere that the trustee is required or permitted to select the year. (2) "Beneficiary" includes, in the case of a decedent s estate, an heir [, legatee,] or devisee and, in the case of a trust, an income beneficiary or a remainder beneficiary. (3) "Fiduciary" means a personal representative or a trustee. The term includes an executor, administrator, successor personal representative, special administrator, and a person who performs substantially the same function. (4) "Governing instrument" - 6 -

7 means a will, a trust instrument, an instrument exercising a power of appointment, any other instrument that provides for successive income and remainder beneficiaries, or a court order. (5) "Income" means money or property a fiduciary receives as the current return from a principal asset. The term includes a portion of the receipts from a sale, exchange, or liquidation of a principal asset, to the extent provided in [Article] 4. (6) "Income beneficiary" means a person to whom a trust s net income is or may be payable. (7) "Income interest" means an income beneficiary's right to receive all or part of the net income whether the governing instrument requires it to be distributed or authorizes it to be distributed in the trustee s discretion (8) "Mandatory income interest" means an income beneficiary s right to receive net income that the governing instrument requires the fiduciary to distribute. (9) "Net income" means the total receipts allocated to income during an accounting period minus the disbursements paid and other items transferred from income during that period

8 (10) "Principal" means property held in trust for distribution to a remainder beneficiary when the trust terminates, including undistributed income added to principal pursuant to the governing instrument or Section 303. (11) "Remainder beneficiary" means a person, including another trust, who is entitled to receive principal when an income interest ends. (12) "Trustee" includes an original, additional or successor trustee, whether or not appointed or confirmed by a court. (b) Other definitions that apply to this [Act] and the sections in which they appear are: "Deferred compensation" Section 421(a) "Due date" Section 304 "Liquidating Asset" Section 422(a) "Partial liquidation" Section 401(c) "Periodic due date" Section

9 "Undistributed income" Section 303(b) Comment Inventory value. There is no definition for inventory value in this Act because the provisions in which that term was used in the 1962 Act have either been eliminated (in the case of the unproductive property provision) or changed in a way that eliminates the need for the term (in the case of property subject to depletion and the method for determining entitlement to income distributed from a probate estate). "Discretionary income beneficiary" and "Discretionary income interest" are not defined because those terms are not used in the Act, but the definitions of income beneficiary (section 101(a)(7)) and income interest (section 101(a)(9)) are broad enough to cover both mandatory and discretionary beneficiaries and interests. SECTION 102. FIDUCIARY DUTIES; GENERAL PRINCIPLES. (a) In allocating receipts and disbursements to or between principal and income, and in any other matter within the scope of this [Act], a fiduciary: (1) shall administer a trust or estate in accordance with the provisions of the governing instrument even if there is a different provision in this [Act]; (2) may administer a trust or estate by the exercise of a discretionary power given the fiduciary by the - 9 -

10 governing instrument even if the fiduciary s exercise of that power results in a determination different from a provision of this [Act]; (3) shall administer a trust or estate in accordance with the provisions of this [Act] if the governing instrument does not contain a different provision or give the fiduciary a discretionary power; (4) shall add a receipt or charge a disbursement to principal to the extent that the governing instrument and this [Act] do not provide a rule for allocating the receipt or disbursement to or between principal and income; and (5) to the extent that the governing instrument and this [Act] do not provide a rule for any matter within the scope of this [Act] other than one governed by paragraph (4), shall administer a trust or estate impartially, based on what is fair and reasonable to all of the beneficiaries, unless the governing instrument clearly manifests an intention that the fiduciary must or may favor one or more of the beneficiaries, and by considering the factors in Section 103(b)

11 (b) If the governing instrument gives the fiduciary or another person the power to decide whether a receipt or disbursement is principal or income, or to decide any other matter for which there is a provision in this [Act], or provides that this [Act] does not apply but contains no provision about a matter for which there is a provision in this [Act], the fiduciary or other person shall act impartially, based on what is fair and reasonable to all of the beneficiaries, unless the governing instrument clearly manifests an intention that the fiduciary must or may favor one or more of the beneficiaries. A determination in accordance with this [Act] is presumed to be fair and reasonable to all of the beneficiaries. Comment Prior Act. Section 102(a) restates the rule in section 2 of the 1962 Act, without changing its substance, to emphasize the fundamental concept that the Act contains only default rules and that provisions in the governing instrument are paramount. If there is no provision in either the governing instrument or this Act, the fiduciary must allocate a receipt or a disbursement to principal, and must be impartial in making any other decision on a matter within the scope of the Act. Section 102(a)(2) incorporates the rule in section 2(b) of the 1962 Act that a discretionary allocation made by the trustee contrary to a rule in the Act should not give rise to an inference of imprudence or partiality by the trustee. This draft deletes the language at the end of 1962 Act section 2(a)(3) - "and in view of the manner in which men of ordinary prudence, discretion and judgment would act in the management of their affairs" - because persons of ordinary prudence, discretion and judgment, acting in the management of their own affairs don't normally think in terms of the interests of successive beneficiaries. If there is an analogy to an individual's decision-making process, it is probably the individual's decision to spend or to save, but this is not a useful guideline for trust administration. No case has been found in which a court has relied on the 1962 Act's "prudent man"

12 rule. Fiduciary discretion. The general rule is that if a discretionary power is conferred upon a trustee, the exercise of that power is not subject to control by a court except to prevent an abuse of discretion. Restatement (Second) of Trusts 187. The situations in which a court will control the exercise of a trustee s discretion are discussed in the comments to 187. See also 233, Comment p. Questions for which there is no provision. The allocation to principal of items for which there is no provision in this Act or the governing instrument, as provided in subsection (a)(4), will favor the income beneficiary in the year allocated to principal if the item is a disbursement, but thereafter it will reduce the income produced by principal. If the item is a receipt, it will favor the income beneficiary by increasing the annual income, and will eventually, upon termination of the trust, favor the remainder beneficiary. Allocating such items to principal implements the general rule, which is to administer the trust impartially, based on what is fair and reasonable to both income and remainder beneficiaries. Duty of impartiality. Governing instruments occasionally provide that the trustee, or an accountant engaged by the trustee, or a committee of persons who may be family members or business associates, shall have the power to determine what is income and what is principal; they may also provide that the Act does not apply without saying how the trustee should deal with a matter provided for in the Act. The provision in Section 102(b) is intended to be a statement of public policy that in such cases the rule of impartiality applies if the governing instrument does not provide that one or more beneficiaries are to be favored. The fact that a person is named an income beneficiary or a remainder beneficiary is not by itself an indication of partiality for that beneficiary

13 SECTION 103. TRUSTEE S POWER TO ADJUST WHEN THE TRUST INSTRUMENT IS SILENT. (a) In a case in which a trustee determines that the trust instrument does not contain adequate discretionary powers of administration, or powers to invade principal or accumulate income, that are sufficient to permit the trustee to comply with the trustee's duty to pay due regard to the interests of income and principal and the duty of impartiality, the trustee shall have the power to adjust between principal and income in such amounts and proportions as the trustee considers necessary to administer the trust impartially, based on what is fair and reasonable to all of the beneficiaries, unless the governing instrument clearly manifests an intention that the fiduciary must or may favor one or more of the beneficiaries. (b) In adjusting trust assets a trustee shall consider the following factors: (1) the nature, purpose and expected duration of the trust; (2) the express intent of the settlor; (3) the identity and circumstances of the beneficiaries; (4) the actual and anticipated effect of economic conditions on principal and income and effects of inflation and deflation; (5) the anticipated tax consequences of an

14 adjustment; (6) the total return from investments; (7) needs for liquidity, regularity of income, and preservation and appreciation of capital; (8) the assets held in the trust; and (9) other factors relevant to the trust or its beneficiaries. (c) A trustee may not make an adjustment that would cause a loss of all or part of a federal or state gift tax exclusion; gift or estate tax marital deduction; income, gift or estate tax charitable deduction; or inheritance tax deduction, if the exclusion or deduction is otherwise available to any estate or trust or to the settlor of a trust or a decedent. (d) A trustee may not make an adjustment for the trustee's direct or indirect benefit, including the satisfaction or mitigation of any legal obligation of the trustee. However, a disinterested co-trustee may make the adjustment. (e) If a governing instrument limits the power of a trustee to make equitable adjustments, the instrument is not contrary to this section unless it is clear from the instrument that it is intended to deny the trustee this power of adjustment. Comment Purpose and Scope of Provision. This section provides a power to adjust total return. This section does not provide a power to reduce a beneficiary's income or a power to invade principal or a power to distort trust administration for improper tax advantage. An adjustment of investment return under this section is not an invasion of principal or an accumulation of income. It is an

15 adjustment of the total return received by the trustee. Thus, this section can alleviate the tension between modern rules for investing the assets held by a trustee and traditional ideas about what constitutes the return on a portfolio. As to modern trust investing, see the Uniform Prudent Investor Act (1994). As to the allocation of return in a modern context see, Joel C. Dobris, "New Forms of Private Trusts for the 21st Century -- Principal and Income." Real Property, Probate & Trust Journal ; Joel C. Dobris, Real Return, Modern Portfolio Theory and College, University and Foundation Decisions on Annual Spending From Endowment: A Visit to the World of Spending Rules 28 Real Prop., Prob., & Tr.J. 49 (1993); Joel C. Dobris, The Probate World at the End of the Century: Is a New Principal and Income Act in Your Future? 28 Real Prop., Prob., & Tr.J. 393 (1993). This section allows the trustee to undertake the best, the most prudent and totally most productive investment of all the trust assets without concern about whether the investments chosen have the effect of impartially allocating the total investment return between the income and principal beneficiaries. This section also allows the trustee to follow the well understood traditional system of allocating receipts and expenditures in most situations. If the trustee invests all the assets of a trust, taken as a portfolio, in a way that will have an initially unsuitable effect under the terms of the trust without an adjustment of return this section allows the trustee to adjust. The power to adjust spares the trustee from having to choose second best investments. Giving some trustees the power to adjust portfolio returns between income and principal is less dramatic than it might first seem to be. The prior Principal and Income Acts inferentially allowed a range of possible returns for successive beneficiaries via asset choice and asset allocation. There were a number of legally acceptable, impartial portfolios for any given trust that would produce a variety of income and principal outcomes. The trustee always had the power to affect the return to beneficiaries. Operating under this section, if the trustee concludes that the outcome of a conventional allocation between principal and income would be unsuitable, then the trustee should adjust to achieve a suitable result. Fiduciary duty. This power is subject to an abuse of discretion standard. Reasonable trustee action is not subject to judicial review except to prevent an abuse of discretion. See Restatement (Second) of Trusts 187 (1959). See also id 183, 232, 233, comment p (1959). There is an intrinsic tension in trust law between granting trustees broad powers that facilitate flexible and efficient trust administration, and protecting trust beneficiaries from the misuse of such powers. A broad trustee's power, such as those found in most lawyer-drafted instruments and exemplified in the Uniform Trustees' Powers Act, permits the trustee to act vigorously and expeditiously to maximize the interest of the beneficiaries in a variety of transactions and

16 administrative settings. Trust law relies upon the duties of loyalty, impartiality and prudent administration, and upon procedural safeguards such as periodic accounting and the availability of judicial oversight, to prevent the misuse of such powers. Adjustment, which is a species of trustee power, raises the same tension. If the trustee adjusts effectively, the beneficiaries obtain the advantage of the underlying investment and the adjustment. But if the trustee adjusts ineffectively the adjustment can do harm. This section is designed to strike the appropriate balance not only between the advantages and the hazards of adjustment, but also between the advantages and hazards of reworking a known investment/allocation system. This section is designed to provide a power to adjust total return and not to provide a power to reduce a beneficiary's income or a power to invade principal. An adjustment of investment return under this section is not an invasion of principal or an accumulation of income, but an adjustment of the total return received by the trustee. It is a provision to cure an oversight on the part of the settlor and the drafter. This section is subject to the injunctions in Section 102 of this Act including the one that the trustee "shall be fair and reasonable to all of the beneficiaries unless the governing instrument clearly manifests an intention that the fiduciary must or may favor one or more beneficiaries." This section is also subject to the limitations on fiduciary liability in Section 103. Default rule. This section is a default rule of trust law. A settlor can expressly set aside this rule, just as a settlor can establish a noncharitable unitrust, instead of a traditional trust, to avoid some of the problems that arise when a trustee invests in a modern fashion within a traditional trust. Examples. The following examples demonstrate the function of the adjustment approach, primarily in the context of modern investing: Example (1)--T is the trustee of a trust that provides income for A for life, remainder to B. The trustee originally holds a portfolio invested 20% in equity and 80% in debt. In response to the Uniform Prudent Investor Act, the trustee converted this portfolio to one invested 50% in equity and 50% in debt. As a result, the current yield, as determined under other sections of this act, falls. The trustee is authorized, after considering the factors in this section, to transfer from principal to income, such amounts as the trustee considers appropriate to increase the income interest. Example (2)--T was the trustee of a trust that provides income for C for life, remainder to D. In a period of intense inflation, when debt investments yielded double digit returns, the trustee determined that a portion of this nominal double digit interest, payable to C under the other provisions of this Act, was a return of capital. The trustee properly transferred a portion of this nominal interest to principal as compensation for the loss of value of principal due to inflation. The trust was not a marital deduction trust. Example (3)--T is the trustee of a trust that provides

17 income for E for life, remainder to F. The trust also gives the trustee the power to invade principal for the benefit of E for "dire emergencies only." This is a trust instrument that does not contain adequate discretionary powers to invade principal sufficient to permit the trustee to comply with the trustee's duty to pay due regard to the interests of income and principal and the duty of impartiality. The trustee has the power contained in this section to adjust between principal and income. See generally Joel C. Dobris, "New Forms of Private Trusts for the 21st Century -- Principal and Income." Real Property, Probate & Trust Journal ; Joel C. Dobris, Real Return, Modern Portfolio Theory and College, University and Foundation Decisions on Annual Spending From Endowment: A Visit to the World of Spending Rules 28 Real Prop., Prob., & Tr.J. 49 (1993); Joel C. Dobris, The Probate World at the End of the Century: Is a New Principal and Income Act in Your Future? 28 Real Prop., Prob., & Tr.J. 393 (1993); Joel C. Dobris, Limits on the Doctrine of Equitable Adjustment in Sophisticated Postmortem Tax Planning, 66 Iowa L. Rev. 273 (1981). See also James P. Garland, A Market-Yield Spending Rule for Endowments and Trusts, The Financial Analysts Journal, 50 (July/Aug 1989). Example (4)--T is the trustee of a trust that gives the trust income to G for life, remainder to H. The trust allows the trustee to invade the principal of the trust, over the lifetime of the trust, in the discretion of the trustee, to a maximum of 6% of the value of the trust at its inception, for the benefit of G. The trustee does not have the power contained in this section to adjust between principal and income. This power of invasion is such that the settlor is understood to have considered traditional principal as a source of resources for the income beneficiary and capped it in an exact and precise fashion. Therefore, the power of adjustment is unavailable. Example (5)--Having invested in assets generating no traditional income, the trustee chose to sell enough assets to generate a return for the income beneficiary. In adjusting, the trustee chose to consider as a factor a system used by some colleges and universities for determining current return on endowment in determining trust income. In doing so, the trustee took into account the different purposes, time horizons and tax exempt status of such organizations and the potential for additional gifts lacking in a private trust. T gave the income beneficiary an amount equal to 30% of 4.5 percent of the principal of the trust plus 70% of the amount paid in the prior year to the income beneficiary. This is a proper exercise of the power of adjustment because it takes into account beneficiary expectations and the inflation adjusted return on investments, and because it makes efficient and proper use of the expertise of professionals who closely study the annual return on investment assets. See Joel C. Dobris, Real Return, Modern Portfolio Theory and College, University and Foundation Decisions on Annual Spending From Endowments: A Visit to the World of Spending Rules 28 Real Prop., Prob., & Tr.J. 49 (1993). Example (6)--Having invested in assets generating no traditional income, in adjusting the trustee chose to consider as

18 a factor the National Association of College and University Business Officers (NACUBO) average endowment spending rate for college and university endowments for the previous year. In doing so, the trustee took into account the different purposes, time horizons and tax exempt status of such organizations and the potential for additional gifts lacking in a private trust. This is a proper exercise of the power of adjustment because, among other things, it makes efficient and proper use of the expertise of professionals who closely study the annual return on investment assets. See Twentieth Century Fund, Task Force on College and University Endowment Policy, Funds for the Future 122 (1975) (this is, in its essence, a monograph by J. Peter Williamson). See also Robert H. Jeffrey, The Folly of Market Timing, Harv. Bus. Rev., July-Aug 1984, at 102; Robert H. Jeffrey, A New Paradigm for Portfolio Risk, J. Portfolio Mgmt., Fall 1984, at 33. Example (7)--T is the trustee of a trust that provides income for I for life, remainder to J. The trust was created primarily for tax savings purposes. In response to a request from I, the trustee proposes to use this section to accumulate traditional trust income to reduce I's assets for transfer tax purposes. T is not authorized to make this adjustment under this section. The settlor is understood as not intending this result and it cannot be justified by reference to the factor in Section 103(b)(2) ("the anticipated tax consequences of an adjustment"). Example (8)--T is the trustee of a trust that provides income to L for life, remainder to M. The trust is a tax advantaged trust. Receipts allocated to principal are subject to transfer taxation at the termination of the trust. T proposes to allocate a traditional principal receipt to income under this section to avoid transfer taxes at the termination of the trust. Such an adjustment is not authorized by this section. The settlor is understood not to have intended such a result and it cannot be justified by reference to the factor in Section 103(b)(2) ("the anticipated tax consequences of an adjustment"). Subsection (c). Subsection (c) is designed to preserve the tax benefits sought by settlors in trusts created before and after the enactment of this Act. Subsection (d). Subsection (d) deals with trust provisions forbidding trustees from making equitable adjustments. Ultimately, the effect of any provision in a document is a question of interpretation. Ordinarily, a clause that restrains the use of equitable adjustments is not to be read as disallowing the use of this equitable power of adjustment. Ordinarily, a clause that is in an instrument drafted before the promulgation of this Act is not to be construed as forbidding the use of this equitable power of adjustment. See generally, Joel C. Dobris, Limits on the Doctrine of Equitable Adjustment in Sophisticated Postmortem Tax Planning, 66 Iowa L. Rev. 273 (1981). [Article] 2 DECEDENTS' ESTATES AND TERMINATING INCOME INTERESTS SECTION 201. DETERMINATION AND DISTRIBUTION OF NET INCOME

19 After a decedent dies, in the case of an estate, or after an income interest in a trust ends, the following rules apply: (1) A fiduciary of an estate or terminating income interest shall determine the amount of net income and net principal receipts received from property specifically given to a beneficiary under the rules in [Articles] 3 through 5 that apply to trustees and the rules in paragraph (4). The fiduciary shall distribute the net income and net principal receipts to the beneficiary who is to receive the specific property. (2) A fiduciary shall determine the remaining net income of a decedent's estate or a terminating income interest under the rules in [Articles] 3 through 5 that apply to trustees and by: (i) including in net income all income from property used to discharge liabilities; (ii) paying from principal all disbursements made or incurred in connection with the settlement of a decedent's estate or the winding up of a terminating income interest, including debts, funeral expenses, family allowances, fees of attorneys, accountants and fiduciaries, court costs, and death taxes and related penalties that are apportioned to the estate or terminating income interest by the governing instrument or applicable law; and (iii) distributing from net income, or from principal to the extent that net income is insufficient, to a nontrust beneficiary who is to receive a pecuniary amount outright, the amount, if any, provided by applicable law or the

20 governing instrument. If the pecuniary amount is required to be paid from a trust after an income interest ends, and if there is no applicable law or governing instrument provision, the fiduciary shall distribute the amount, if any, to which the beneficiary would be entitled under applicable law if the pecuniary amount were required to be paid under a will. (3) A fiduciary shall distribute the remaining net income to all other beneficiaries, including a trust that receives a pecuniary amount, in the manner described in Section 202. This paragraph applies to a trust that receives a pecuniary amount even if a beneficiary of the trust holds a presently exercisable general power of appointment over the trust, including an unqualified power to withdraw assets. (4) A fiduciary may not reduce income or principal receipts from property described in paragraph (1) because of a payment described in Sections 501 or 502 to the extent that the governing instrument or applicable law requires the fiduciary to make the payment from assets other than the property or to the extent that the fiduciary recovers or expects to recover the payment from a third party. The property's net income and principal receipts are determined by including all of the amounts the fiduciary receives or pays with respect to the property, whether those amounts accrued or became due before, on, or after the date of a decedent's death or an income interest's terminating event, and by making a reasonable provision for amounts that the fiduciary believes the trust may become obligated to pay after the property is distributed

21 (5) For the purposes of this Act, an income interest ends when an income beneficiary dies or another terminating event occurs. The rules that apply when an income interest ends also apply at the end of a period during which there is no beneficiary to whom a trustee may or must distribute principal or income. Comment To the Drafting Committee: One member of our group has commented that he believes definitions of "successive income interest" and "terminating income interest" (or "terminating trust") are unnecessary - that the terms can be used without definition because their meaning is obvious. The suggestion to eliminate the definitions reinforces my desire to simplify the Act as much as possible, but I don't share the view that these terms are obvious in all fact situations. If the definitions are deleted, I would add the comment that follows this one (in fact, I would probably add it even if you decide not to delete them). What do you think? Are definitions needed, or is the comment sufficient? The deleted definitions (from old section 201) read as follows: (a) "Successive income interest" means an income interest in some or all of the principal assets that were subject to an income interest that has ended. It may follow an income interest in the same trust or it may be an income interest in another trust that receives some or all of the principal assets subject to a terminating income interest. (b) "Terminating income interest" means an income interest that has partially or completely ended, and whose assets become subject to one or more successive income interests or are to be distributed free of trust, or both, after administration of the assets subject to the income interest has been completed. Terminating income interests and successive income interests. A basic trust has a single income beneficiary, and the trust ends when the income interest ends. More complex trusts have a number of income interests, which may be concurrent or successive, but they are interests in a single trust and are not separate trusts. For that reason, the Act speaks in terms of income interests ending and beginning rather than trusts ending and beginning. When a trust's income interest ends, the trustee's powers continue during the winding up period required to complete its administration. A terminating income interest is one that has ended but whose administration is not complete. If two or more people are given the right to receive specified percentages or fractions of the income from a trust

22 concurrently and one of the concurrent interests ends, for example when the beneficiary dies, the income interest ends but the trust does not. Similarly, when a trust with only one income beneficiary ends upon the beneficiary's death, the trust instrument may provide that part or all of the trust assets shall continue in trust for another income beneficiary. While it is common to think and speak of this (and even to characterize it in a trust instrument) as a "new" trust, it is in fact a continuation of the original trust for a remainder beneficiary who has an income interest in the trust assets instead of the right to receive them outright. For purposes of this Act, this is a successive income interest in the same trust. The fact that a trust may or may not end when an income interest ends is not significant for purposes of this Act. If the assets that are subject to a terminating income interest pass to another trust because the income beneficiary exercises a general power of appointment over the trust assets, the recipient trust would be a "new" trust; and if she exercises a limited power of appointment over the trust assets it might be a new trust in some states (see Austin W. Scott and William F. Fratcher, 5A The Law of Trusts 640, at 483 (4th ed. 1989)). But for purposes of this Act a new trust is also a successive income interest. Pecuniary bequests. The different treatment (in paragraphs (2)(iii) and (3) of this section) for an outright pecuniary bequest and a pecuniary bequest in trust is taken from Section 5(b)(2) of the 1962 Act. Interest on pecuniary bequests. Section 201(2)(iii) provides that the beneficiary of an outright pecuniary amount is to receive the interest or other amount provided by applicable law, and it adds a provision to cover the situation in which there is a provision under applicable law or a governing instrument dealing with gifts made under a will but no provision dealing with gifts made under an inter vivos trust agreement. Section of the Uniform Probate Code provides: "General pecuniary devises bear interest at the legal rate beginning one year after the first appointment of a personal representative until payment, unless a contrary intent is indicated by the will." There is no comparable provision in the UPC that deals with gifts made in an inter vivos trust agreement. The various state authorities that provide for the amount that a beneficiary of an outright pecuniary amount is entitled to receive are collected in Richard B. Covey, Marital Deduction and Credit Shelter Dispositions and the Use of Formula Provisions, App. B (Supp. 1995). SECTION 202. DISTRIBUTIONS TO RESIDUARY AND REMAINDER BENEFICIARIES. (a) Each beneficiary described in Section 201(3) shall receive a percentage of the net income equal to the beneficiary's

23 percentage interest in undistributed principal assets other than property specifically given to a beneficiary and property required to pay pecuniary amounts not in trust, using values as of the distribution date. (b) If a fiduciary makes more than one distribution of assets to beneficiaries to whom this section applies, all of those beneficiaries, including those who do not receive part of the distribution, are entitled, as of each distribution date, to the net income the fiduciary has received after the date of death or terminating event or earlier distribution date but has not distributed as of the current distribution date. In determining a beneficiary's share of net income: (1) the beneficiary shall receive a percentage of the net income equal to the beneficiary's percentage interest in the undistributed principal assets immediately before the distribution date, including assets that later may be sold to meet principal obligations; and (2) the beneficiary's interest in the undistributed principal assets must be computed on the basis of the aggregate value of those assets as of the distribution date without reducing the value by any unpaid principal obligation. For the purpose of this section, the distribution date is the date as of which the fiduciary computes the value of the assets, which may be a date reasonably near the date on which assets are actually distributed. (c) The rules in this section shall apply to net gain or loss realized after the date of death or terminating event or earlier distribution date from the disposition of a principal asset if this section applies to the income from the asset. (d) If a fiduciary does not distribute all of the collected

24 but undistributed net income, gain or loss to each person on a distribution date, the fiduciary shall maintain appropriate records showing the interest of each beneficiary in that net income, gain or loss. Comment Relationship to prior Acts. Section 202 retains the concept in Section 5(b)(2) of the 1962 Act that the residuary legatees of estates are to receive net income earned during the period of administration on the basis of their proportionate interests in the undistributed assets when distributions are made. It changes the basis for determining the proportionate interests by using asset values as of a date reasonably near the time of distribution instead of inventory values; it extends the application of these rules to distributions from terminating trusts; and it extends these rules to gain or loss realized from the disposition of assets during administration, an omission in the 1962 Act that has been noted by a number of commentators. [Article] 3 APPORTIONMENT AT BEGINNING AND END OF INCOME INTEREST SECTION 301. WHEN RIGHT TO INCOME BEGINS. (a) An income interest begins on the date specified in the governing instrument or, if no date is specified, on the date an asset becomes subject to a trust or successive income interest. An income beneficiary is entitled to net income from the date on which the income interest begins. (b) An asset becomes subject to a trust: (1) on the date it is transferred to the trust in the case of an asset that is transferred to a trust during the transferor's life; (2) on the date of an individual s death in the case of an asset that is transferred to a fiduciary by a third party because of the individual s death; (3) on the date of death of a testator in the case of an asset that becomes subject to a trust by reason of a will, even if

25 there is an intervening period of administration of the testator's estate. (c) An asset becomes subject to a successive income interest on the date the preceding income interest ends, even if there is an intervening period of administration to wind up the preceding income interest. SECTION 302. APPORTIONMENT OF RECEIPTS AND DISBURSEMENTS WHEN DECEDENT DIES OR INCOME INTEREST BEGINS. (a) A receipt or disbursement must be allocated to principal if its due date occurs before a decedent dies or an income interest begins. (b) A receipt or disbursement whose due date occurs after the date on which a decedent dies or an income interest begins shall not be apportioned between principal and income if the due date is a periodic due date under Section 304. If it is not a periodic due date, the receipt or disbursement must be treated as accruing from day to day. The portion of the income or obligation accruing before the income interest begins is principal and the balance is income. Comment Prior Acts. Professor Bogert stated that "Section 4 of the [1962] Act makes a change with respect to the apportionment of the income of trust property not due until after the trust began but which accrued in part before the commencement of the trust. It treats such income as to be credited entirely to the income account in the case of a living trust, but to be apportioned between capital and income in the case of a testamentary trust. The [1931] Act apportions such income in the case of both types of trusts, except in the case of corporate dividends." Bogert, The Revised Uniform Principal and Income Act, 38 Notre Dame Law 50, 52 (1962). The 1962 Act accomplishes this result by providing in Section 4(b) that the Act applies "in the administration of a decedent's estate or an asset becoming subject to a trust by reason of a will...," and in Section 4(c) that "[i]n all other cases, any receipt from an income-producing asset is income even though... earned or accrued in whole or in part before the date when the asset became subject to the trust." Having two different rules is confusing. In order to simplify administration, Section 302 applies the same rule to inter vivos trusts (revocable and irrevocable), testamentary trusts and assets

26 that become subject to an inter vivos trust through a pour-over bequest in a will. Periodic payments. Under section 302, a periodic payment is principal if it is due but unpaid before a decedent dies or before an asset becomes subject to a trust, but the next payment is allocated entirely to income and is not apportioned. Thus, periodic receipts such as rents, dividends, interest, and annuities, and disbursements such as mortgage payments, are not apportioned. This is the original common law rule. Edwin A. Howes, Jr., The American Law Relating to Income and Principal 70 (1905). In trusts in which a surviving spouse is dependent upon a regular flow of cash from the decedent s securities portfolio, this rule insures that payments to the spouse will continue at the same level as before the settlor s death. Under the 1962 Act rule, the predeath portion of the first periodic payment due after death is apportioned to principal in a testamentary trust. Nonperiodic payments. Under the second sentence of subsection (b), interest on an obligation that does not provide a due date for the interest payment, such as interest on an income tax refund, would be apportioned to principal to the extent that it accrues before a person dies or a trust begins unless the obligation is specifically given to a devisee or remainder beneficiary, in which case subsection 201(1) would give all of the accrued interest to the person who receives the obligation. SECTION 303. APPORTIONMENT OF RECEIPTS AND DISBURSEMENTS WHEN INCOME INTEREST ENDS. (a) When a mandatory income interest ends, a mandatory income beneficiary who survives that date, or the estate of a deceased mandatory income beneficiary whose death causes the interest to end, is entitled to the beneficiary's share of the undistributed income that is not disposed of by the governing instrument to the extent that the beneficiary does not have an unqualified power to revoke the trust when the income interest ends. (b) When a trustee s obligation to pay an annuity or a unitrust amount ends, the trustee shall pay a pro rata portion of the annuity or unitrust amount, as determined under applicable law, if it is necessary to do so to qualify for an income, gift, estate, or other tax deduction. In all other cases, an annuity payment or unitrust amount shall not be apportioned. (c) "Undistributed income" means net income received before the last distribution date prior to the date on which an income

27 interest ends, but to the extent necessary for a trust to qualify for the marital deduction, the term means net income received before the date on which an income interest ends. The term does not include an item of income or expense that is due or accrued, net income from property to which Section 201(1) applies, or net income that has been added or is required to be added to principal pursuant to the terms of the governing instrument. [Alternate provision for the first sentence in subsection (c): "Undistributed income means net income received before the date on which an income interest ends."] Comment Prior Acts. Both the 1931 Act (Section 4) and the 1962 Act (Section 4(d)) provide that a deceased income beneficiary's estate is entitled to the undistributed income. The Drafting Committee concluded that this is probably not what most settlors would want, and that most settlors would probably favor the income beneficiary first, the remainder beneficiaries second, and the income beneficiary's heirs last, if at all. However, it decided not to eliminate this provision completely to avoid causing disputes about whether the trustee should have distributed collected cash before the income beneficiary died. The prior Acts include in undistributed income periodic payments, other than dividends, that are due or that have accrued; the last sentence of subsection (c) provides that such items are not included in undistributed income. That provision would apply to periodic payments of interest, rent, and dividends, and also to unrealized increases in the value of zero coupon bonds and similar instruments. Beneficiary with an unqualified power to revoke. Subsection (a) does not apply to a beneficiary who has an unqualified power to revoke the trust when the income interest ends. Without this limitation, subsection (a) would apply to a revocable living trust whose grantor is the mandatory income beneficiary during her lifetime, and whose will provides that all of the assets in the probate estate are to be distributed to the trust. This limitation would also apply to a trust created by someone other than the income beneficiary if the trust permits the beneficiary to withdraw all or a fraction of the trust principal after attaining a specified age and the beneficiary attains that age but fails to withdraw all of the principal that she is permitted to withdraw. The limitation applies in this case on the assumption that the beneficiary has either provided for the disposition of the trust assets (including the undistributed income) by exercising a power of appointment that she has been given, or has not withdrawn the assets because she is satisfied to have the principal and undistributed income of the trust be distributed to the persons designated in the trust instrument as takers in default. If this beneficiary has the power to withdraw 25% of the trust principal, subsection (a) would apply without limitation to the 75% that she